Judge Eileen M. Cannon will preside over a hearing Friday in former President Donald J. Trump’s classified documents case, and she is expected to spend the day considering familiar arguments about arcane legal questions in an unconventional way.
This would be the latest example of how her unconventional handling of cases is now becoming the norm.
Over the past few months, Judge Cannon, whom President Trump appointed in the final days of his term, has issued a number of rulings that have been questioned and criticized by legal scholars following the case. Many of his rulings on a wide range of issues have left legal scholars perplexed, and he has often signaled a willingness to give serious consideration to the more outlandish issues that Trump’s lawyers have raised in his defense.
The issue to be argued Friday in U.S. District Court in Fort Pierce, Florida, is a defense motion to dismiss the case on the grounds that special prosecutor Jack Smith, who brought the case last spring, was improperly funded and appointed.
The defense argues that Smith was not appointed by the president or confirmed by the Senate like other federal employees, and that Attorney General Merrick B. Garland, who gave him the job, had no legal authority to do so arbitrarily.
Smith’s subordinates counter that under the Constitution’s Appointments Clause, agency heads like Garland have the power to appoint “minor officials” like special counsel as subordinates.
While the subject matter of the hearings may seem fairly technical, what’s most unusual is that they are being held at all.
Dating back to the early 1970s, courts have repeatedly rejected attempts to challenge the legitimacy of independent counsel like Trump’s, including the Supreme Court’s decision upholding the appointment of Leon Jaworski, one of the special counsels who investigated Watergate, which focused primarily on President Richard Nixon’s claims of executive privilege.
The justices also rejected efforts to quash the investigations of special counsel Robert S. Mueller III, who investigated ties between Russia and Trump’s 2016 election campaign, and special counsel David C. Weiss, who has brought two criminal charges against President Biden’s son, Hunter Biden.
But despite this record, Judge Cannon decided to reconsider the constitutionality of Smith’s appointment — not through written argument, but through a full two-day hearing. The hearing will go beyond the usual process of mere argument and may include, as the justices recently wrote, “the presentation of evidence,” although it remains unclear what evidence the justices mean.
In another unusual move, Judge Cannon allowed three lawyers who filed so-called amicus, or amicus briefs, to argue before the judge for 30 minutes each. These outside parties, called “amicus,” are typically allowed to present their arguments directly to the judge in appeals courts such as the Supreme Court, but this is not standard practice in trial courts.
“The fact that Judge Cannon granted Amici’s request for oral argument appears to indicate that she is seriously considering the constitutional arguments against the appointment of a special counsel,” said Joel S. Johnson, an associate professor at Pepperdine University’s Caruso School of Law.
One of the most striking aspects of Judge Cannon’s tenure is how she has largely ignored the common practice in the Southern District of Florida, where she serves, of judges referring routine motions to the magistrate judge assigned to the case.
Cannon has not referred any motions to the magistrate judge in the case, Bruce E. Reinhart, who is familiar with the case having approved the search warrant used two years ago when FBI agents stormed Mr. Trump’s Palm Beach mansion, Mar-a-Lago, and removed troves of classified documents central to the case.
Even before Trump was indicted last June on charges of illegally retaining classified documents after leaving office and then obstructing repeated efforts by the government to retrieve them, Judge Cannon took the extraordinary step of needlessly intervening in the case.
After the FBI searched Mar-a-Lago, she barred federal prosecutors from using evidence collected from Trump properties until an independent adjudicator sifted through privileged material. That decision was quickly overturned with a stern rebuke from her appeals court.
In recent months, Judge Cannon has continued a similar trend, making some questionable decisions and often delaying making decisions.
In February, for example, Ms. Smith surprised observers of the case by agreeing to reveal the names of several government witnesses in documents that Mr. Trump’s lawyers planned to submit. Concerned about the safety of the witnesses, Ms. Smith’s attorneys asked her to reconsider the decision, and she ultimately agreed.
A month later, the judge issued another puzzling order, asking the defense and prosecutors to send draft jury instructions that appeared to adopt one of Trump’s key defenses in the case.
The order was odd on its face because questions about jury instructions are typically resolved the night before trial, at which point Judge Cannon had not yet set a trial date.
Even more bizarre, the judge appeared to adopt Trump’s defense, either urging jurors to acquit the former president or leaving open the possibility of acquitting Trump himself at the end of the trial by ruling that the government hadn’t made out its case.
More recently, Judge Cannon held hearings for Trump’s co-defendants, Walt Nauta and Carlos de Oliveira, to consider filing so-called “detailed statements” that would detail charges supplementing those laid out in the indictment.
Such documents are rarely given to criminal defendants. Judge Cannon ultimately denied the request, but her decision to hold a court for a hearing on the issue in the first place was unusual, since other district (or magistrate) judges often decide such minor pretrial issues based solely on court documents. But in this case, Judge Cannon made holding a hearing the standard.
Last month, Judge Cannon issued an order formally canceling the case’s May 20 trial schedule. Judges have broad discretion when it comes to scheduling cases and are not typically required to justify their decisions, but Judge Cannon cited a curious justification for postponing the trial: a 2013 essay titled “National Security Trials: A Judge’s Perspective.”
The author was T.S. Ellis III, a respected former jurist and longtime judge in the Eastern District of Virginia. But it was unusual for a judge to cite an informal document as the basis for a ruling, rather than relying solely on legal precedent.
“That’s an interesting indication of the effort that goes into crafting these cases,” said Tracy E. George, a professor at Vanderbilt University Law School, “or the lack of effort or care.”
